State ex rel. Oklahoma Bar Ass'n v. Leigh

• Decision Date: 12 March 1996
• Docket Number: No. 4044,No. 1175,1175,4044
• Citation: 914 P.2d 661,1996 OK 37
• Parties: STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Edmond Dale LEIGH, Respondent. OBADSCBD
• Court: Oklahoma Supreme Court

Page 661

914 P.2d 661

1996 OK 37

STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Edmond Dale LEIGH, Respondent.

OBAD No. 1175.

SCBD No. 4044.

Supreme Court of Oklahoma.

March 12, 1996.

Janis Hubbard, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Complainant.

R. Michael Cantrell, Patricia K. Cantrell, Oklahoma City, for Respondent.

OPALA, Justice.

In this disciplinary proceeding against a lawyer, the issues to be decided are: (1) Is the record ¹ sufficient for a meaningful de novo consideration of the complaint's disposition? and (2) Is a 180-day suspension with imposition of costs an appropriate disciplinary sanction to be imposed for respondent's breach of professional discipline? We answer both questions in the affirmative.

The Oklahoma Bar Association [OBA or Bar] charged Edmond Dale Leigh [Leigh or respondent], a licensed lawyer, with one count of professional misconduct. The Bar and Leigh then entered into a stipulation of facts and agreed conclusions of law with a joint recommendation for public reprimand as discipline to be imposed for the charged professional misconduct. Although a panel of the Professional Responsibility Tribunal [PRT] adopted the parties' findings of fact and conclusions of law, it rejected the recommended discipline, proposing instead as the appropriate sanction a 120-day suspension, compensatory payment of $3,200 to respondent's client and the costs of this proceeding. The PRT's suggested disciplinary sanction rests on the following observation:

"The Trial Panel heard and observed the Respondent in somewhat lengthy testimony, including responding to questions from the members of the Trial Panel. The Trial Panel's impression was that the Respondent was somewhat evasive and less than forthright in his testimony and did not appear to accept the stipulated violations as meaningful or serious. The Trial Panel rejected the proposed recommendation stipulated by the parties, and recommends that the Respondent be suspended for a period of 120 days, that he make restitution of $3,200.00 to James A. Mays, the complaining party, and pay all costs of these proceedings."

COUNT I

Respondent, a licensed practitioner, took in May 1990 the exam for certification as a certified public accountant [CPA]. On July 31 of that year he received his grades from the Oklahoma Board of Public Accountancy [PA Board], ² which indicated he did not pass all parts of that exam. Although lacking CPA status, Leigh used legal stationery which bore the abbreviation "CPA" placed after his name. The letterhead also designated him as "Senior Attorney and Director of Services" even though he was the only lawyer in the legal corporation (Leigh & Company). Respondent received a public accountant's [PA] license in September 1990, but did not obtain an annual permit to practice until June 1991. On August 22, 1991 respondent obtained his CPA certificate, but the PA Board suspended it for two years from that date because he (a) had improperly used the CPA designation and (b) did not have an annual permit to practice public accounting with a PA license. Leigh's actions were termed violative of both the Public Accountancy Act of 1968 (as amended) ³ and the PA Board's Rules of General Application. ⁴

On November 29, 1990 James A. Mays [Mays], owner of Quality Cabling Company [Quality], and Treca Taylor [Taylor], secretary, met with respondent about taxes owed to the Internal Revenue Service [IRS]. Because Leigh held himself out by his business card to be a tax lawyer and a CPA, ⁵ Mays, believing him to be an expert tax practitioner, paid him a $1,000 retainer to handle the IRS problems.

Shortly afterwards, Leigh completed the necessary paperwork to form an Oklahoma corporation with the name Deain Service Company [Deain]. Deain then purchased the assets of Mays d/b/a Quality Cabling Co. On November 30, 1990, Leigh sent Mays a statement for services he had rendered to Mays, Quality and Deain. This was followed by a series of billing statements, which covered the period from December 1990 through April 1991. ⁶ These statements were typed on respondent's legal letterhead bearing after his name the following: "Edmond Dale Leigh, J.D., CPA, CFP, Senior Attorney and Director of Services." Leigh also used the CPA title to support a billing rate on five of the statements when, in fact, no CPA performed services for Mays. On the same legal stationery respondent corresponded on behalf of Mays with American General Finance in Norman, Oklahoma and Public Employees Services Corporation in Oklahoma City.

On May 16, 1991 respondent's professional corporation, Leigh & Company, sued Deain for $4,553.25 for his services and that of his staff between November 29, 1990 and April 30, 1991. Mays (on behalf of Deain) filed an answer, counterclaim and third-party petition, alleging fraud and negligence by respondent. On January 22, 1993, the jury returned three verdicts for third-party plaintiff Mays (against Leigh) on his claim for (1) fraud ($7,400), (2) negligence ($19,400) and (3) punitive damages ($22,500). A fourth verdict--for Leigh & Company--was against Mays for Leigh's services ($1,580.75). Leigh & Company brought an appeal from the judgment on the first three jury verdicts. ⁷

On May 17, 1991 (the day after Leigh & Company's suit) Mays, through his sister, filed a complaint against Leigh with the PA Board. This resulted in a suspension of Leigh's CPA certificate until August 21, 1993. On May 18, 1993 respondent filed a petition for Chapter 13 bankruptcy in the United States Bankruptcy Court for the Western District of Oklahoma. The largest obligation Leigh sought to discharge was Mays' January 22 judgment. Respondent dismissed his bankruptcy case on January 20, 1994 and refiled it on February 22 of that year. Finding that Leigh's plan lacked good faith, the court withheld its confirmation of the proposed discharge and later dismissed the case. Respondent's appeal from this order is pending. ⁸

On July 14, 1993, two months after Leigh had petitioned for Chapter 13 bankruptcy, Mays filed a grievance against the respondent with the Bar. The Bar and Leigh agreed that he violated Rules 1.5, 4.1, 7.1, 7.4, 7.5 and 8.4(c) ⁹ of the Oklahoma Rules of Professional Conduct. Their stipulation includes no mitigating factors. The case is before us for de novo consideration.

I

FALSE AND MISLEADING COMMUNICATIONS ON LEGAL LETTERHEAD,

BUSINESS CARDS AND BILLING STATEMENTS

A lawyer shall not make a false or misleading communication about his (or her) services (Rule 7.1) ¹⁰ or knowingly make a false statement of material fact or law to a third person (Rule 4.1). ¹¹ A communication is false or misleading if it (a) contains a material misrepresentation of fact or law (Rule 7.1(a)(1)) or (b) is likely to create an unjustified expectation about the results the lawyer can achieve (Rule 7.1(a)(2)). ¹² A lawyer's letterhead, billing statement or business card is a communication within the meaning of Rule 7.1. ¹³

As a licensing agency for lawyers, this court has the responsibility to protect the public from those practitioners who falsely represent their specialities. This duty includes protection of governmental agencies (with whom a lawyer may deal on matters of some specialized law) from practitioners who would use their state licenses to misrepresent their true qualifications in a given field of legal expertise. A false, misleading or deceptive communication, which does not constitute commercial speech entitled to First Amendment protection, may be subject to regulation. ¹⁴

The Bar asserts Leigh has violated the cited Rules of Professional Conduct (a) by the inclusion of "CPA" and "tax lawyer" on his business card, (b) by the use of "CPA, Senior Attorney and Director of Services" in his legal letterhead and (c) in his communications with third persons on behalf of his client.

We hold that respondent's use of the "CPA" designation on his legal letterhead and business card--after he had failed to pass the CPA exam--is a false and material communication about his qualifications to both present and potential clients, as well as to third persons, which is likely to create an unjustified expectation about the results he can achieve. The letterhead not only misrepresented Leigh's status qua CPA, but also his position as a senior member of Leigh & Company when, in fact, he was a sole legal practitioner uncertified as a CPA. Furthermore, respondent's use of the "CPA" title to support a billing rate on his statements for services--printed on his legal letterhead--misrepresented the factors to be considered in arriving at the reasonableness of his fee. Respondent's conduct is not only false and misleading within the meaning of Rules 1.5, 4.1, 7.1, 7.4, and 7.5, but also constitutes professional misconduct under Rule 8.4(c). ¹⁵

II

A 180-DAY SUSPENSION AND PAYMENT OF COSTS ARE AN APPROPRIATE

SANCTION FOR RESPONDENT'S PAST PROFESSIONAL MISCONDUCT

The Oklahoma Supreme Court has exclusive original jurisdiction over Bar disciplinary proceedings. ¹⁶ The court's review is conducted by de novo consideration of the prosecution brought before it. ¹⁷ Neither the parties' stipulation nor the PRT panel's findings of fact or conclusions of law is binding on this court. ¹⁸ The ultimate responsibility for administration of professional discipline is ours alone.

While the Bar initially agreed with respondent that a public reprimand was an appropriate sanction, its position changed after the PRT hearing. The Bar now urges that we adopt the PRT's recommended discipline to be imposed (a) by a 120-day suspension, (b) by $3,200 in compensatory payment to Mays and (c) by assessing the costs of this proceeding. According to the Bar, because respondent is unwilling to perceive or admit the disrepute his conduct brought on the profession and the wrongfulness of his actions, he will likely repeat these intolerable derelictions. Leigh's...